Gender and Personal Injury

March 30, 2017

International Women’s Day (March 8, 2017), is a global day celebrating the achievements of women and highlighting efforts needed to reach equality.  In 1908, 15,000 women marched through the streets of New York City demanding higher pay and voting rights. A little over 100 years later, women have broken countless glass ceilings and have taken great strides toward equality. But could your gender impact your personal injury outcome?

It’s possible. In 1996 an automobile accident left a 6-year-old girl and a male fetus dead. Both sides agreed that the male fetus would be rewarded more because of what he was expected to earn in his lifetime versus hers. The settlement for the fetus was 84% higher than the 6-year-old girl. In 2009, the National Association of Forensic Economics conducted a study to determine what percent of forensic economics use race and gender when projecting annual wage for an injured child. The result: 44% considered race and 92% considered gender. This results in white and male victims receiving larger compensations than people of color and women.

Economists’ calculate the number of years a victim would have worked and their expected wages— both of which women and minorities fall behind compared to their male and white counterparts. Defenders of these types of calculations argue that it is the most accurate formula to determine future income. Others suggest that these calculations do not take into consideration the closing of the wage gap through the years. And some also believe that this reinforces past discrimination and even makes it a part of the future for victims. The Second Restatement of Torts addresses the use of these types of calculations and states that “it is permissible to use mortality tables and other evidence as to the average expectancy of a large number of persons.”

Yet, the world is leaning against this type of practice. Both Canada and Israel have moved away from using these calculations and the United States has banned the use of race and gender averages in some other calculations. For example, the Affordable Care Act makes it illegal for insurances to charge women more than men. I am optimistic in the movements towards gender and racial equality— perhaps with more steps taken by the next International Women’s Day, March 8, 2018.